Senin, 19 Desember 2011
Paul Hildwin at trial
Paul Christopher Hildwin, left, hangs his head down as jurors give a guilty verdict against him for the first-degree murder of Vronzettie Cox. Seated besdie Hildwin is his defense attorney Dan Lewan. The jury took only two hours to reach their verdict.
The wait has been excruciating for cancer patient Paul Hildwin and his attorney, Martin McClain.
Minggu, 18 Desember 2011
DeLand killer's appeal: IQ too low to execute
DeLand killer's appeal: IQ too low to execute
By JAY STAPLETON, Staff writer 
Cherry
DAYTONA BEACH -- For the fifth time, Roger Lee Cherry will be back in a Volusia County courtroom this week to appeal his death sentence for a DeLand killing more than 25 years ago. On Tuesday, Cherry, 60, will argue for the second time that his IQ is too low to be executed under Florida law.
The hearing comes at a busy time for local death penalty appeals. Troy Victorino, who was sentenced to die for killing six people in Deltona in 2004, was in court last week in his post-conviction appeal.
With the IQ argument, Cherry is raising an issue that was already argued and denied.
Back in 2005, a similar motion to overturn Cherry's conviction and sentence was denied by Circuit Judge Julianne Piggotte, who found there was "substantial probability" that Cherry's IQ was higher than the level of 70 required.
An average IQ is 100.
What's different now, according to court documents, is the way intelligence tests are given and scored.
Defense lawyers say Cherry's IQ is in the mentally retarded range.
Prosecutors, however, argue Cherry is not mentally retarded. They point to books Cherry has kept in his cell at Union Correctional Institution and prior IQ tests, which were as high as 86.
It will be up to Circuit Judge Frank Marriott to decide. Tuesday's hearing is expected to take all day.
Cherry was 35 years old when he crept into the South Osceola Avenue home of Leonard and Esther Wayne, 77, and took off with guns, a wallet and the couple's car. In the process, he beat and kicked Esther Wayne to death.
Leonard Wayne, 80, died of a heart attack when he tried to confront Cherry in their home.
The police found evidence that led them to Cherry, including the recovery of the couple's ATM card at a nearby bank.
Their car was found ditched later.
The killer gained entry by removing jalousie window panes from a rear porch. The broken pieces of glass were found in the woods, with blood that matched Cherry's.
At his trial, Cherry's girlfriend testified for the state, telling the jury that Cherry had confessed to her.
"The people was awake and saw him and the lady tried to fight him or something," Lorraine Neloms testified. "And he hit her."
After he was found guilty of the deaths, the jury recommended death for Cherry for killing Esther Wayne by a vote of 9 to 3.
The same jury also recommended Cherry get the death penalty for the killing of Leonard Wayne.
That death sentence was later vacated because Leonard Wayne died of a heart attack.
Under a 2004 Florida Supreme Court ruling, criminals must have an IQ above 70 to be executed.
Last year, Daytona Beach convicted killer Ted Herring won a victory in a similar motion, when Circuit Joseph Will vacated his death sentence.
Judge Will found Herring's IQ was too low to be executed for killing a convenience store clerk in 1982.
The victory, however, was short lived.
In October, the Florida Supreme Court ruled that Herring should remain in death row, finding his IQ is higher than the 70 threshold.
The high court disagreed with Will, finding that Herring's IQ tests had been between 70 and 75.
"This court has consistently and explicitly held that a defendant must establish an IQ of 70 or below to avoid execution," the Florida Supreme Court wrote in that ruling.
DNA no match to inmate
By TONY HOLT | Hernando Today
Published: December 18, 2011
The wait has been excruciating for cancer patient Paul Hildwin and his attorney, Martin McClain.
Earlier this month, they got the break they had long been waiting for. There was no doubt it was coming, but it took longer than expected.
The DNA evidence found at a murder scene didn't come from Hildwin, according to the Florida Department of Law Enforcement. It came from William Haverty, who has been in prison since a 1998 rape conviction.
Hildwin has lived on death row for 25 years. He was convicted in the slaying of Vronzettie Cox, 42, whose body was found in the trunk of her car the morning of Sept. 13, 1985 in the area of Royal Highlands — a rural community north of Weeki Wachee.
During the course of the trial, prosecutor Tom Hogan referred more than once to the fluids found on the victim's underwear and a nearby washcloth, which was discovered in the backseat.
Tests showed the fluids were semen and saliva, according to court testimony.
The 1986 trial took place before the advent of DNA evidence, but Hogan argued the semen came from a nonsecretor — someone whose blood type can't be traced through bodily fluids. Nonsecretors make up 11 percent of the world's population, said Hogan.
Hildwin was a nonsecretor, Hogan said. Haverty, who was Cox's boyfriend at the time of her death, was not.
Hildwin's defense attorney, Daniel Lewan, tried connecting the killing to Haverty, but was unsuccessful.
Hildwin was caught cashing one of Cox's stolen checks. He also gave different stories to authorities when questioned. He also told an incredible story to jurors when the inexperienced Lewan allowed him to testify, said McClain, who has since handled most of the appellate work on behalf of Hildwin.
There were other issues glossed over by the state during the trial, according to defense motions.
The window of opportunity for the slaying was small – roughly 90 minutes. During that time, the state argued Hildwin walked to a store off U.S. 19, murdered Cox, stuffed her body into the trunk, parked the car in the woods, cashed the stolen check and then walked back to his own abandoned car along the highway.
It was the forensic evidence against Hildwin, which now has been proven false, that put the case over the top for the state, McClain said. It was presented to jurors through the testimony of an FBI lab technician.
"The FBI analyst testimony excluding Haverty as the contributor of the material was and has been the lynchpin of the state's case," said McClain.
McClain said Hogan was secretive about the presentation of the evidence. Lewan didn't know about it until the fourth day of trial. McClain, through interviews, arguments and court filings, has been a sharp critic of Hogan's prosecutorial techniques.
Hogan now runs a private practice out of Brooksville. Months ago, he told Hernando Today he was still convinced Hildwin was the killer no matter who the DNA belonged to.
McClain said the state had long "locked out" the DNA from being uploaded into the database. It did so because it was convinced it wasn't Haverty's DNA.
"It's their actions that have caused this delay," said McClain. "My client has struggled to stay alive."
In a motion filed last week, McClain called the tactics by the Florida Attorney General's Office "indefensible." He said the attitude from the state has been inappropriate.
"Mr. Hildwin has been seeking an order for more than eight years comparing this sample to Mr. Haverty over the State's objection," he stated in his motion.
No one from the Attorney General's Office has commented about the Hildwin case because the appeal remains open.
Hildwin's cancer has been in remission. McClain said his client is relying on prison staff for his medical care as he awaits additional surgeries.
McClain had three appellate motions tied to Hildwin, including the one asking the state to upload the DNA.
Following his latest victory, McClain hopes it will accelerate the other motions and eventually overturn the verdict.
McClain said when he told his client about the latest development in the case, Hildwin smiled at him.
"I told you so," McClain said, recalling Hildwin's words. "I knew it. I knew it."
Rabu, 30 November 2011
Minggu, 21 Agustus 2011
Florida Supreme Court order in Manuel Valle
http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_08-17-2011_Order.pdf
Supreme Court of Florida
WEDNESDAY, AUGUST 17, 2011
CASE NO.: SC11-1387
Lower Tribunal No(s).: F78-5281A
MANUEL VALLE vs. STATE OF FLORIDA
___________________________________________________________________
Appellant(s) Appellee(s)
Having considered the briefs submitted by the parties, the oral argument
tentatively scheduled for 9:00a.m., Wednesday, August 24, 2011, is cancelled.
A True Copy
Test:
th
Served:
SUZANNE MYERS KEFFER
PAUL EDWARD KALIL
MICHAEL CHANCE MEYER
SANDRA SUE JAGGARD
Supreme Court of Florida
WEDNESDAY, AUGUST 17, 2011
CASE NO.: SC11-1387
Lower Tribunal No(s).: F78-5281A
MANUEL VALLE vs. STATE OF FLORIDA
___________________________________________________________________
Appellant(s) Appellee(s)
Having considered the briefs submitted by the parties, the oral argument
tentatively scheduled for 9:00a.m., Wednesday, August 24, 2011, is cancelled.
A True Copy
Test:
th
Served:
SUZANNE MYERS KEFFER
PAUL EDWARD KALIL
MICHAEL CHANCE MEYER
SANDRA SUE JAGGARD
The supplemental replybrief in Manuel Valle
http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_08-17-2011_Appellant_Supplemental_Reply_Brief.pdf
IN THE SUPREME COURT OF FLORIDA NO. SC11-1387
MANUEL VALLE, Appellant, v. STATE OF FLORIDA, Appellee.
DEATH WARRANT SIGNED ______________________________________________________ SUPPLEMENTAL REPLY BRIEF OF APPELLANT ______________________________________________________ NEAL A. DUPREE Capital Collateral Regional Counsel—South SUZANNE KEFFER Chief Assistant CCRC-South OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL—SOUTH 101 N.E. 3rd Avenue, Suite 400 Ft. Lauderdale, Florida 33301 (954) 713-1284 COUNSEL FOR MR. VALLE
i
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
ARGUMENT IN REPLY .......................................................................................... 1
REPLY TO THE STATEMENT OF FACTS ........................................................... 1
REPLY TO ARGUMENT I ....................................................................................... 6
REPLY TO ARGUMENT II ...................................................................................11
CERTIFICATE OF SERVICE ................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................16
ii
TABLE OF AUTHORITIES
Cases Greenfield v. Westmoreland, 3D06-2081, 2007 WL 518637 (Fla. Dist. Ct. App. Feb. 21, 2007) ................ 2 Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989) ..........2, 6
1
ARGUMENT IN REPLY
Mr. Valle submits this Reply to the State’s supplemental answer. Given the short time provided to prepare this Reply Brief, Mr. Valle cannot and will not reply to every argument raised by the State. Mr. Valle neither abandons nor concedes any issues and/or claims not specifically addressed in this Reply Brief. Mr. Valle expressly relies on the arguments made in his Initial Brief and Supplemental Initial Brief for any claims and/or issues that are only partially addressed or not addressed in this Reply Brief.
REPLY TO THE STATEMENT OF FACTS
The question before this Court is whether the use of pentobarbital as an anesthetic is sufficient to guard against the substantial risk of harm during the execution process. Germane to that issue is whether Mr. Valle was precluded from proving his Eighth Amendment claim due to the exclusion of witnesses and evidence. The State’s rendition of the Statement of Facts includes irrelevant procedural history that has nothing to do with the issues as well as misleading assertions that serve only to undermine the credibility of Mr. Valle’s expert witness and the integrity of his counsel. As such, those statements that are “unduly argumentative” and/or “immaterial and impertinent to the controversy” should be stricken and/or ignored. Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla.
2
1st DCA 1989); see also Greenfield v. Westmoreland, 3D06-2081, 2007 WL 518637 (Fla. Dist. Ct. App. Feb. 21, 2007). At the Tuesday morning status hearing following the relinquishment, the lower court unilaterally scheduled the evidentiary hearing for the Thursday and Friday of that week, July 28-29, 2011. (T. 07/26 7). The State recounts the fact that Mr. Valle informed the Court that his expert, Dr. David Waisel, would not be available until the next week, August 2, 2011 and that the “lower court ordered Defendant to present him by phone or videoconferencing or find a substitute witness.” Supplemental Answer at 2. The State then asserts that Mr. Valle moved for a continuance at the start of the evidentiary hearing so that he could present Dr. Waisel in person and that he presented an affidavit in support of his request with the implication that he was merely trying to delay the proceedings. Supplemental Answer at 5. Later in the recitation of the facts, the State simply asserts that the lower court decided that Mr. Valle would be permitted to present Dr. Waisel during the following week. Supplemental Answer at 7. This narration regarding Dr. Waisel's availability is not germane to any issue on appeal; the facts as portrayed by the State mischaracterize what happened at the hearing and serve only to portray Mr. Valle, his witness, and his counsel in a negative light.
Given that the State has made Dr. Waisel's availability an issue, it would be more accurate to state that Mr. Valle announced at the beginning of the evidentiary
3
hearing that he was prepared to present one witness and documentary evidence but that Dr. Waisel's schedule would not permit him to testify until the following week (T. 07/28 7-8). This was especially true given that he had just taken time off from his job as a pediatric anesthesiologist to travel to Georgia for his testimony in the DeYoung case. See Affidavit of Dr. Waisel; (T. 07/28 8, 14-15). Further, Mr. Valle had no objection to the State presenting its witnesses out-of-turn. (T. 07/28 9). The State repeatedly argued that Dr. Waisel could appear by telephone (T. 07/28 15, 16, 20, 22). In fact, the State’s intention was to present its own witness, Dr. Dershwitz by telephone (T. 07/28 71). Mr. Valle wanted to have Dr. Waisel testify in person due to the technological limitations presented by telephonic testimony, especially in light of the need for credibility findings (T. 07/28 71-72, 74). It was during this discussion that the circuit court expressed a clear preference for video-conferencing, agreeing that it is important for the court to see the witness (T. 07/28 74). The State fails to recite that its expert had other commitments that prevented him from getting to a video-conferencing facility on the days scheduled for the evidentiary hearing (T. 07/28 73). In fact, the State finally admitted that Dr. Dershwitz was not available to testify by video-conference until the following week, either. (T. 07/28 78). It was then that the lower court agreed that the witnesses would be heard on August 2, 2011 (T. 07/28 81). The foregoing facts are relevant to the extent that the State has misrepresented the record.
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Additionally, the State makes inaccurate statements about a number of material facts about the expert witnesses that are not supported by the record. These inaccuracies can only be an attempt to mislead this Court. The State mischaracterizes Dr. Waisel’s testimony in stating that he was “hired to assist the defense.” Supplemental Answer at 11. Dr. Waisel never testified he was hired, because in fact Dr. Waisel does not charge any expert or witness fees. This mischaracterization is striking given that the State leaves out that its expert, Dr. Dershwitz makes $3500.00 per day for his testimony and charges an hourly rate for preparation, review and consultation (T. 08/02 130). The misstatement is important with respect to evaluating the lower court's credibility findings. The State argues in its statement that Dr. Waisel testified that “the upper limit dose of pentobarbital was 500 mg regardless of the patient’s weight,” Supplemental Answer at 12-13, when in fact his testimony indicated that the upper limit dose of pentobarbital was 500 mg for an unspecified weight (T. 08/02 60). The difference is important because Dr. Waisel did not testify that he would disregard a patient’s weight, rather he testified that the recommended doses do not specify a weight therefore, he titrates the dose to the affect he observes (T. 08/02 65-69). Importantly, Dr. Waisel testified that there is no average intravenous dosage of pentobarbital that can be relied on to produce similar effects in different patients (T. 08/2 67).
5
Additionally, the State indicates that Dr. Waisel acknowledged that pentobarbital is used for “assisted suicides and euthanasia.” Supplemental Answer at 15. The record reflects that Dr. Waisel indicated that pentobarbital is used in physician-assisted suicides and animal euthanasia (T. 08/02 95). In neither one of those circumstances would pancuronium bromide be injected into either the patient or the animal after the introduction of the pentobarbital. Here again, the fact the State finds it necessary to misrepresent these facts is perhaps more relevant than the facts themselves. The State also asserts that Dr. Dershwitz testified that the use of the dose of pentobarbital as prescribed in the lethal injection procedures “would definitely be fatal” Supplemental Answer at 16. This ignores that Dr. Dershwitz conceded that he was overstating “definitely” (T. 8/2 150-151), because this dose has never been used clinically (T. 8/2 149). The State also misrepresents the testimony of Dr. Dershwitz concerning his previous testimony regarding pentobarbital. When asked if he testified previously that thiopental is better than pentobarbital for executions, Dr. Dershwitz refused to answer: In order to answer that question, I'd have to draw a comparison that I am no longer allowed to do. However, the written record is extensive and I stand behind the answers I gave in the past, and I cannot answer that question today.
(T. 8/2 134-5). Dr. Dershwitz did not simply state “he had no reason to suggest that
6
he had not given such testimony,” Supplemental Answer at 18, but in fact indicated he stood by his previous answers and reiterated that at the time he made the statements, those statements were true (T. 08/02 144). Therefore, Dr. Dershwitz not only admitted those were his statements, but he vouched for the accuracy of his previous testimony where he questioned the use of pentobarbital in lethal injections due to a lack of research. This is perhaps the most important fact concerning the expert testimony: both experts agree that there little to no data or research concerning the use of pentobarbital as an anesthetic agent.
Finally, the State uses the recitation of the oral arguments as argument rather than a narrative of the relevant, material facts. Supplemental Answer at 18-21. The State repeatedly oversimplifies arguments made by the Defendant, interjecting conclusory statements which don’t accurately reflect the record. While a Statement of Facts should be persuasive, it is inappropriate to present it in an unduly argumentative manner. Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989). The Eighth Amendment issue before the Court is too serious for Mr. Valle to ignore the State's misrepresentations.
REPLY TO ARGUMENT I
The State’s Answer Brief demonstrates a fundamental misunderstanding of the issue on several different levels. First, the State’s comparison of the use of sodium thiopental off label in the lethal injection context to the use of pentobarbital
7
off label, Supplemental Answer Brief at 39, completely misses the point of Mr. Valle’s argument; Mr. Valle presented evidence that the induction of anesthesia is an off label use of pentobarbital. In other words, pentobarbital is not FDA approved for the induction of anesthesia. That the use of sodium thiopental in lethal injections is off label is irrelevant. Sodium thiopental is FDA approved for—and prior to the halt of its production was very commonly used for—the induction of anesthesia, which was also its role in lethal injections. In contrast, the use of pentobarbital for induction of anesthesia in any context, let alone in lethal injections, is off label. While it is true that doctors may, in their educated discretion, choose to use certain drugs “off label,” in this case, it is not a doctor who is made the decision to use the pentobarbital as an anesthetic in this context.
Similarly, the State confuses the purpose of pentobarbital and the purpose of lethal injection, arguing both below and in its Answer that “the emphasis on surgical anesthesia was incorrect as the purpose of a lethal injection was to cause death; not unconsciousness.” Supplemental Answer Brief at 19 (citing PCR3-SR. 577). As Mr. Valle pointed out in his Supplemental Initial Brief, the fact that Florida has chosen to adopt a three-drug protocol—consisting of an anesthetic, a paralytic, and a drug to stop cardiac activity—renders the issues very different from the issues in states that use pentobarbital as the sole drug. Supplemental Initial Brief at 24, FN 5. While the purpose of lethal injection as a whole is to
8
cause death, the State overlooks that the specific purpose of pentobarbital is to cause unconsciousness so that the condemned inmate does not feel the certain excruciating pain of the second and third drugs. The substantial risk of serious harm stems from the risk that the pentobarbital will not sufficiently anesthetize the condemned inmate to prevent the undisputedly serious harm of the second and third drugs being injected into a conscious person. Further, the State asserts that “Dr. Dershwitz opined that a five gram does of pentobarbital administered during the time periods called for in a lethal injection protocol would produce a massive overdose.” Supplemental Answer at 16 (citing PCR3-SR 525-27). It bears noting that Dr. Dershwitz also testified that he did not review Florida’s June 8, 2011 procedures, (T. 8/2 125), that the June 8, 2011 procedures do not specify a time period for the injection of the drugs, and there has been no evidence presented regarding the time period for the administration of the drugs. Dr. Dershwitz agreed that he “nor anyone else on Earth, could draw the high resolution graphs for pentobarbital that [he] drew for thiopental, because in order to do so, we need human studies that don’t exist.” (T. 08/02 139). Dr. Dershwitz also agreed, based on his previous testimony, that it was necessary to know the respiratory and hemodynamic effects of pentobarbital, not simply how long it will keep someone unconscious. Dr. Dershwitz acknowledged there was not much human data with respect to pentobarbital in these areas (T. 08/02 139-40).
9
As Mr. Valle pointed out in his Supplemental Initial Brief, there is a continuum between the state of being conscious and the state of being anesthetized. Even if the pentobarbital works as the State says it will, and even if pentobarbital in the dose called for in Florida’s procedures will eventually cause death, the ultimate question—the only question—is at what point on the continuum from consciousness to death are the excruciatingly painful second and third drugs administered. Central to the issue of the safety and efficacy of pentobarbital remains the sufficiency of the consciousness check in the procedures and the training of the personnel involved in administering and overseeing the lethal injection process. The lethal injection procedures do not delineate the method for assessing consciousness. It is unknown whether the assessment of consciousness has been changed, which is significant “particularly in light of lack of information available about how fast pentobarbital takes effect in a lethal injection scenario” (Report of Dr. Waisel at 9).
While Mr. Valle was not permitted to present evidence regarding the sufficiency of the consciousness check called for in the procedures, he maintains that it is not sufficient to mitigate against the substantial risk of serious harm. It is important to note that evidence regarding the procedures with respect to the introduction of the pentobarbital and the second and third drug would not have been beyond the scope of the remand; the procedures must be considered in the
10
context of the issue of the efficacy of the pentobarbital. In fact, the failure to understand the difference between the purpose of lethal injection as opposed to the purpose of the pentobarbital can be attributed to the consideration of the drug in a vacuum. The State oversimplifies the testimony of Dr. Waisel regarding the use of pentobarbital to induce a barbiturate coma. Dr. Waisel testified that dosages necessary to induce a barbiturate coma, in patients with injured brains are “fairly well established.” Dr. Waisel recalled articles from the 1970’s, with the caveat that “nearly every article I have ever read suggests that you titrate to affect, because people respond differently to drugs, and the goal is to achieve burst suppression, so we don’t just give a dose and walk away” (T. 08/02 93). Both Dr. Waisel and Dr. Dershwitz agreed that an EEG is used to monitor the patient (T. 08/02 86, 117). On more than one occasion, Dr. Waisel clarified that the body of knowledge regarding the use of pentobarbital to achieve a barbiturate coma is exclusively in patients with brain damage, such as a swollen brain or intractable seizures, and in most cases the patient has already been anesthetized (T. 08/02 88). Likewise, Dr. Dershwitz could not say that the state of an individual’s brain did not affect the reliability of the known doses because the range in doses is quite large (T. 08/02 114). This is an important distinction because there are no studies regarding the use of pentobarbital for induction of anesthesia in a person with a healthy brain.
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In large part, the State ignores the arguments of Mr. Valle, instead regurgitating the lower court’s order in whole. In conclusory fashion, the State merely claims that each of the witnesses testified as the lower court described in its order. Therefore, Mr. Valle relies on the remaining facts and arguments presented in his Supplemental Initial Brief as those arguments refute the findings of the lower court. Given the complete dearth of information, research, and history of pentobarbital for inducing anesthesia, the lower court’s finding that Mr. Valle has not met his burden of demonstrating a substantial risk of serious harm is not supported by substantial, competent evidence.
REPLY TO ARGUMENT II
The State complains that Mr. Valle did not preserve the issues regarding the exclusion of witnesses because he did not proffer their anticipated testimony. Supplemental Answer at 42. The State then argues that the lower court did not abuse its discretion in striking these witnesses based on what was proffered. Supplemental Answer at 43. Indeed, the court considered the proffer offered by Mr. Valle and determined that these witnesses would not be relevant. Such a finding could only be made upon a sufficient proffer. The court had a sufficient proffer of each witnesses’ anticipated testimony with which to make relevancy findings. The subject matter of the witnesses’ testimony was evident.
12
To the extent that Mr. Valle could not proffer exact answers to questions he would ask of the Department of Corrections witnesses, this is due to the conduct of the Department of Corrections in failing to disclose relevant information. In any event, the import of these witnesses’ testimony seems lost on the State, as it was on the lower court. This Court remanded for an evidentiary hearing on Mr. Valle’s allegations concerning the efficacy of pentobarbital as a substitute for sodium thiopental in Florida’s lethal injection procedures. While this issue is limited, it cannot be considered in a vacuum. The efficacy of pentobarbital must be considered in the context in which the drug is to be administered. Moreover, in order to test whether pentobarbital is appropriate, it is necessary to establish what information the Department of Corrections relied on in establishing pentobarbital as the anesthetic to be used in the lethal injection procedure. Mr. Valle would have presented Warden Cannon, Secretary Buss, Rana Wallace, Russell Hosford and Jennifer Parker to establish what, if anything, DOC did in response to letters from the Lundbeck, Inc., manufacturer of pentobarbital warning that their drug not be used for this purpose. Dr. Waisel testified to the significance of these letters, and what should be done in response to them. Surely, the testimony of the people who were responsible for considering Lundbeck’s concerns about the safety and efficacy of their product for a particular purpose was relevant to the issue of the efficacy of that product for that purpose.
13
Not only must the choice of pentobarbital be considered, but also the means by which it is to be administered. Whether pentobarbital is administered properly, by personnel with the necessary training and experience with the drug, is determinative of its efficacy. Similarly, the source of the drug, and whether the Department of Corrections obtained it legally, are relevant to the drug’s effectiveness. If we don’t even know where the drug comes from, it is impossible to determine its efficacy. This is especially so where several corrections agencies throughout the country have been obtaining their lethal injection drugs from questionable suppliers, through illegal measures. Mr. Valle should have been permitted to present these witnesses to establish his claims.
The State also complains, as it did in its motion in limine below, that Mr. Valle sought to use Dr. Waisel as a “conduit for hearsay.” Supplemental Answer at 44. It further argues that the “the lower court also did not abuse its discretion in precluding Defendant from attempting to use Dr. Waisel as a conduit for hearsay.” Supplemental Answer at 44. The State asserts that their motion in limine was granted. Supplemental Answer at 10. This is simply untrue. Firstly, Mr. Valle sought only to present testimony of what information Dr. Waisel relied upon in forming his opinion and why that information was important. The court did not grant the State’s motion in limine. Rather, the court simply stated that “I think it will become clear as the testimony develops.” (T. 8/2 444). The issue did not arise
14
during Dr. Waisel’s testimony, and Mr. Valle made no attempt to use Dr. Waisel as a conduit for hearsay, as the State suggests.
The State appears to confuse the issue of the motion in limine regarding Dr. Waisel’s testimony, which Mr. Valle did not raise in his initial brief, with the separate issue of the admissibility of the affidavits themselves. With regard to that issue, the State argues that the trial court properly excluded the affidavits of Greg Bluestein and Eddie Ledbetter, who had written newspaper articles about the Blankenship execution, because it had clear and convincing doubt about the accuracy of the information contained in the newspaper articles. Supplemental Answer at 47. The State avers that the court found the articles were “sensationalized” and not based solely on first-hand reports, and that “a review of the articles and affidavits supports such a finding.” Supplemental Answer at 47. This is incorrect. Mr. Bluestein and Mr. Ledbetter are both professional journalists employed by established press organizations. While the court may have its suspicions that “newspapers are motivated by the need to sensationalize things” (T. 8/2 433), or that Mr. Bluestein’s reporting is “a little bit suspect” (T. 8/2 436), there is no basis for the court to determine that the facts as stated in those newspaper articles are not true where they are the product of professional journalists, working for established and reputable press organizations, who have affirmed the accuracy of their statements through affidavit. The lower court’s
15
exclusion of the affidavits was an abuse of discretion.
CONCLUSION
In light of the foregoing arguments, Mr. Valle submits that this Court should find Florida’s lethal injection procedures unconstitutional under the Eighth Amendment or, in the alternative, he should be granted a full and fair evidentiary hearing. _____________________________ SUZANNE MYERS KEFFER Chief Assistant CCRC-South Florida Bar No. 0150177 Paul Kalil Assistant CCRC-South Florida Bar No. 174114 M. Chance Meyer Staff Attorney Florida Bar No. 0056362 Capital Collateral Regional Counsel - South 101 NE Third Avenue, Suite 400 Ft. Lauderdale, FL 33301 (954) 713-1284
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic mail and United States Mail to Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Suite 650 Miami, Florida 33131 this 17th day of August, 2011. _____________________________ SUZANNE MYERS KEFFER
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief is typed in Times New Roman 14 point font, in compliance with Fla. R. App. P. 9.210(a)(2). _____________________________ SUZANNE MYERS KEFFER
IN THE SUPREME COURT OF FLORIDA NO. SC11-1387
MANUEL VALLE, Appellant, v. STATE OF FLORIDA, Appellee.
DEATH WARRANT SIGNED ______________________________________________________ SUPPLEMENTAL REPLY BRIEF OF APPELLANT ______________________________________________________ NEAL A. DUPREE Capital Collateral Regional Counsel—South SUZANNE KEFFER Chief Assistant CCRC-South OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL—SOUTH 101 N.E. 3rd Avenue, Suite 400 Ft. Lauderdale, Florida 33301 (954) 713-1284 COUNSEL FOR MR. VALLE
i
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
ARGUMENT IN REPLY .......................................................................................... 1
REPLY TO THE STATEMENT OF FACTS ........................................................... 1
REPLY TO ARGUMENT I ....................................................................................... 6
REPLY TO ARGUMENT II ...................................................................................11
CERTIFICATE OF SERVICE ................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................16
ii
TABLE OF AUTHORITIES
Cases Greenfield v. Westmoreland, 3D06-2081, 2007 WL 518637 (Fla. Dist. Ct. App. Feb. 21, 2007) ................ 2 Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989) ..........2, 6
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ARGUMENT IN REPLY
Mr. Valle submits this Reply to the State’s supplemental answer. Given the short time provided to prepare this Reply Brief, Mr. Valle cannot and will not reply to every argument raised by the State. Mr. Valle neither abandons nor concedes any issues and/or claims not specifically addressed in this Reply Brief. Mr. Valle expressly relies on the arguments made in his Initial Brief and Supplemental Initial Brief for any claims and/or issues that are only partially addressed or not addressed in this Reply Brief.
REPLY TO THE STATEMENT OF FACTS
The question before this Court is whether the use of pentobarbital as an anesthetic is sufficient to guard against the substantial risk of harm during the execution process. Germane to that issue is whether Mr. Valle was precluded from proving his Eighth Amendment claim due to the exclusion of witnesses and evidence. The State’s rendition of the Statement of Facts includes irrelevant procedural history that has nothing to do with the issues as well as misleading assertions that serve only to undermine the credibility of Mr. Valle’s expert witness and the integrity of his counsel. As such, those statements that are “unduly argumentative” and/or “immaterial and impertinent to the controversy” should be stricken and/or ignored. Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla.
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1st DCA 1989); see also Greenfield v. Westmoreland, 3D06-2081, 2007 WL 518637 (Fla. Dist. Ct. App. Feb. 21, 2007). At the Tuesday morning status hearing following the relinquishment, the lower court unilaterally scheduled the evidentiary hearing for the Thursday and Friday of that week, July 28-29, 2011. (T. 07/26 7). The State recounts the fact that Mr. Valle informed the Court that his expert, Dr. David Waisel, would not be available until the next week, August 2, 2011 and that the “lower court ordered Defendant to present him by phone or videoconferencing or find a substitute witness.” Supplemental Answer at 2. The State then asserts that Mr. Valle moved for a continuance at the start of the evidentiary hearing so that he could present Dr. Waisel in person and that he presented an affidavit in support of his request with the implication that he was merely trying to delay the proceedings. Supplemental Answer at 5. Later in the recitation of the facts, the State simply asserts that the lower court decided that Mr. Valle would be permitted to present Dr. Waisel during the following week. Supplemental Answer at 7. This narration regarding Dr. Waisel's availability is not germane to any issue on appeal; the facts as portrayed by the State mischaracterize what happened at the hearing and serve only to portray Mr. Valle, his witness, and his counsel in a negative light.
Given that the State has made Dr. Waisel's availability an issue, it would be more accurate to state that Mr. Valle announced at the beginning of the evidentiary
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hearing that he was prepared to present one witness and documentary evidence but that Dr. Waisel's schedule would not permit him to testify until the following week (T. 07/28 7-8). This was especially true given that he had just taken time off from his job as a pediatric anesthesiologist to travel to Georgia for his testimony in the DeYoung case. See Affidavit of Dr. Waisel; (T. 07/28 8, 14-15). Further, Mr. Valle had no objection to the State presenting its witnesses out-of-turn. (T. 07/28 9). The State repeatedly argued that Dr. Waisel could appear by telephone (T. 07/28 15, 16, 20, 22). In fact, the State’s intention was to present its own witness, Dr. Dershwitz by telephone (T. 07/28 71). Mr. Valle wanted to have Dr. Waisel testify in person due to the technological limitations presented by telephonic testimony, especially in light of the need for credibility findings (T. 07/28 71-72, 74). It was during this discussion that the circuit court expressed a clear preference for video-conferencing, agreeing that it is important for the court to see the witness (T. 07/28 74). The State fails to recite that its expert had other commitments that prevented him from getting to a video-conferencing facility on the days scheduled for the evidentiary hearing (T. 07/28 73). In fact, the State finally admitted that Dr. Dershwitz was not available to testify by video-conference until the following week, either. (T. 07/28 78). It was then that the lower court agreed that the witnesses would be heard on August 2, 2011 (T. 07/28 81). The foregoing facts are relevant to the extent that the State has misrepresented the record.
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Additionally, the State makes inaccurate statements about a number of material facts about the expert witnesses that are not supported by the record. These inaccuracies can only be an attempt to mislead this Court. The State mischaracterizes Dr. Waisel’s testimony in stating that he was “hired to assist the defense.” Supplemental Answer at 11. Dr. Waisel never testified he was hired, because in fact Dr. Waisel does not charge any expert or witness fees. This mischaracterization is striking given that the State leaves out that its expert, Dr. Dershwitz makes $3500.00 per day for his testimony and charges an hourly rate for preparation, review and consultation (T. 08/02 130). The misstatement is important with respect to evaluating the lower court's credibility findings. The State argues in its statement that Dr. Waisel testified that “the upper limit dose of pentobarbital was 500 mg regardless of the patient’s weight,” Supplemental Answer at 12-13, when in fact his testimony indicated that the upper limit dose of pentobarbital was 500 mg for an unspecified weight (T. 08/02 60). The difference is important because Dr. Waisel did not testify that he would disregard a patient’s weight, rather he testified that the recommended doses do not specify a weight therefore, he titrates the dose to the affect he observes (T. 08/02 65-69). Importantly, Dr. Waisel testified that there is no average intravenous dosage of pentobarbital that can be relied on to produce similar effects in different patients (T. 08/2 67).
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Additionally, the State indicates that Dr. Waisel acknowledged that pentobarbital is used for “assisted suicides and euthanasia.” Supplemental Answer at 15. The record reflects that Dr. Waisel indicated that pentobarbital is used in physician-assisted suicides and animal euthanasia (T. 08/02 95). In neither one of those circumstances would pancuronium bromide be injected into either the patient or the animal after the introduction of the pentobarbital. Here again, the fact the State finds it necessary to misrepresent these facts is perhaps more relevant than the facts themselves. The State also asserts that Dr. Dershwitz testified that the use of the dose of pentobarbital as prescribed in the lethal injection procedures “would definitely be fatal” Supplemental Answer at 16. This ignores that Dr. Dershwitz conceded that he was overstating “definitely” (T. 8/2 150-151), because this dose has never been used clinically (T. 8/2 149). The State also misrepresents the testimony of Dr. Dershwitz concerning his previous testimony regarding pentobarbital. When asked if he testified previously that thiopental is better than pentobarbital for executions, Dr. Dershwitz refused to answer: In order to answer that question, I'd have to draw a comparison that I am no longer allowed to do. However, the written record is extensive and I stand behind the answers I gave in the past, and I cannot answer that question today.
(T. 8/2 134-5). Dr. Dershwitz did not simply state “he had no reason to suggest that
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he had not given such testimony,” Supplemental Answer at 18, but in fact indicated he stood by his previous answers and reiterated that at the time he made the statements, those statements were true (T. 08/02 144). Therefore, Dr. Dershwitz not only admitted those were his statements, but he vouched for the accuracy of his previous testimony where he questioned the use of pentobarbital in lethal injections due to a lack of research. This is perhaps the most important fact concerning the expert testimony: both experts agree that there little to no data or research concerning the use of pentobarbital as an anesthetic agent.
Finally, the State uses the recitation of the oral arguments as argument rather than a narrative of the relevant, material facts. Supplemental Answer at 18-21. The State repeatedly oversimplifies arguments made by the Defendant, interjecting conclusory statements which don’t accurately reflect the record. While a Statement of Facts should be persuasive, it is inappropriate to present it in an unduly argumentative manner. Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989). The Eighth Amendment issue before the Court is too serious for Mr. Valle to ignore the State's misrepresentations.
REPLY TO ARGUMENT I
The State’s Answer Brief demonstrates a fundamental misunderstanding of the issue on several different levels. First, the State’s comparison of the use of sodium thiopental off label in the lethal injection context to the use of pentobarbital
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off label, Supplemental Answer Brief at 39, completely misses the point of Mr. Valle’s argument; Mr. Valle presented evidence that the induction of anesthesia is an off label use of pentobarbital. In other words, pentobarbital is not FDA approved for the induction of anesthesia. That the use of sodium thiopental in lethal injections is off label is irrelevant. Sodium thiopental is FDA approved for—and prior to the halt of its production was very commonly used for—the induction of anesthesia, which was also its role in lethal injections. In contrast, the use of pentobarbital for induction of anesthesia in any context, let alone in lethal injections, is off label. While it is true that doctors may, in their educated discretion, choose to use certain drugs “off label,” in this case, it is not a doctor who is made the decision to use the pentobarbital as an anesthetic in this context.
Similarly, the State confuses the purpose of pentobarbital and the purpose of lethal injection, arguing both below and in its Answer that “the emphasis on surgical anesthesia was incorrect as the purpose of a lethal injection was to cause death; not unconsciousness.” Supplemental Answer Brief at 19 (citing PCR3-SR. 577). As Mr. Valle pointed out in his Supplemental Initial Brief, the fact that Florida has chosen to adopt a three-drug protocol—consisting of an anesthetic, a paralytic, and a drug to stop cardiac activity—renders the issues very different from the issues in states that use pentobarbital as the sole drug. Supplemental Initial Brief at 24, FN 5. While the purpose of lethal injection as a whole is to
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cause death, the State overlooks that the specific purpose of pentobarbital is to cause unconsciousness so that the condemned inmate does not feel the certain excruciating pain of the second and third drugs. The substantial risk of serious harm stems from the risk that the pentobarbital will not sufficiently anesthetize the condemned inmate to prevent the undisputedly serious harm of the second and third drugs being injected into a conscious person. Further, the State asserts that “Dr. Dershwitz opined that a five gram does of pentobarbital administered during the time periods called for in a lethal injection protocol would produce a massive overdose.” Supplemental Answer at 16 (citing PCR3-SR 525-27). It bears noting that Dr. Dershwitz also testified that he did not review Florida’s June 8, 2011 procedures, (T. 8/2 125), that the June 8, 2011 procedures do not specify a time period for the injection of the drugs, and there has been no evidence presented regarding the time period for the administration of the drugs. Dr. Dershwitz agreed that he “nor anyone else on Earth, could draw the high resolution graphs for pentobarbital that [he] drew for thiopental, because in order to do so, we need human studies that don’t exist.” (T. 08/02 139). Dr. Dershwitz also agreed, based on his previous testimony, that it was necessary to know the respiratory and hemodynamic effects of pentobarbital, not simply how long it will keep someone unconscious. Dr. Dershwitz acknowledged there was not much human data with respect to pentobarbital in these areas (T. 08/02 139-40).
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As Mr. Valle pointed out in his Supplemental Initial Brief, there is a continuum between the state of being conscious and the state of being anesthetized. Even if the pentobarbital works as the State says it will, and even if pentobarbital in the dose called for in Florida’s procedures will eventually cause death, the ultimate question—the only question—is at what point on the continuum from consciousness to death are the excruciatingly painful second and third drugs administered. Central to the issue of the safety and efficacy of pentobarbital remains the sufficiency of the consciousness check in the procedures and the training of the personnel involved in administering and overseeing the lethal injection process. The lethal injection procedures do not delineate the method for assessing consciousness. It is unknown whether the assessment of consciousness has been changed, which is significant “particularly in light of lack of information available about how fast pentobarbital takes effect in a lethal injection scenario” (Report of Dr. Waisel at 9).
While Mr. Valle was not permitted to present evidence regarding the sufficiency of the consciousness check called for in the procedures, he maintains that it is not sufficient to mitigate against the substantial risk of serious harm. It is important to note that evidence regarding the procedures with respect to the introduction of the pentobarbital and the second and third drug would not have been beyond the scope of the remand; the procedures must be considered in the
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context of the issue of the efficacy of the pentobarbital. In fact, the failure to understand the difference between the purpose of lethal injection as opposed to the purpose of the pentobarbital can be attributed to the consideration of the drug in a vacuum. The State oversimplifies the testimony of Dr. Waisel regarding the use of pentobarbital to induce a barbiturate coma. Dr. Waisel testified that dosages necessary to induce a barbiturate coma, in patients with injured brains are “fairly well established.” Dr. Waisel recalled articles from the 1970’s, with the caveat that “nearly every article I have ever read suggests that you titrate to affect, because people respond differently to drugs, and the goal is to achieve burst suppression, so we don’t just give a dose and walk away” (T. 08/02 93). Both Dr. Waisel and Dr. Dershwitz agreed that an EEG is used to monitor the patient (T. 08/02 86, 117). On more than one occasion, Dr. Waisel clarified that the body of knowledge regarding the use of pentobarbital to achieve a barbiturate coma is exclusively in patients with brain damage, such as a swollen brain or intractable seizures, and in most cases the patient has already been anesthetized (T. 08/02 88). Likewise, Dr. Dershwitz could not say that the state of an individual’s brain did not affect the reliability of the known doses because the range in doses is quite large (T. 08/02 114). This is an important distinction because there are no studies regarding the use of pentobarbital for induction of anesthesia in a person with a healthy brain.
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In large part, the State ignores the arguments of Mr. Valle, instead regurgitating the lower court’s order in whole. In conclusory fashion, the State merely claims that each of the witnesses testified as the lower court described in its order. Therefore, Mr. Valle relies on the remaining facts and arguments presented in his Supplemental Initial Brief as those arguments refute the findings of the lower court. Given the complete dearth of information, research, and history of pentobarbital for inducing anesthesia, the lower court’s finding that Mr. Valle has not met his burden of demonstrating a substantial risk of serious harm is not supported by substantial, competent evidence.
REPLY TO ARGUMENT II
The State complains that Mr. Valle did not preserve the issues regarding the exclusion of witnesses because he did not proffer their anticipated testimony. Supplemental Answer at 42. The State then argues that the lower court did not abuse its discretion in striking these witnesses based on what was proffered. Supplemental Answer at 43. Indeed, the court considered the proffer offered by Mr. Valle and determined that these witnesses would not be relevant. Such a finding could only be made upon a sufficient proffer. The court had a sufficient proffer of each witnesses’ anticipated testimony with which to make relevancy findings. The subject matter of the witnesses’ testimony was evident.
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To the extent that Mr. Valle could not proffer exact answers to questions he would ask of the Department of Corrections witnesses, this is due to the conduct of the Department of Corrections in failing to disclose relevant information. In any event, the import of these witnesses’ testimony seems lost on the State, as it was on the lower court. This Court remanded for an evidentiary hearing on Mr. Valle’s allegations concerning the efficacy of pentobarbital as a substitute for sodium thiopental in Florida’s lethal injection procedures. While this issue is limited, it cannot be considered in a vacuum. The efficacy of pentobarbital must be considered in the context in which the drug is to be administered. Moreover, in order to test whether pentobarbital is appropriate, it is necessary to establish what information the Department of Corrections relied on in establishing pentobarbital as the anesthetic to be used in the lethal injection procedure. Mr. Valle would have presented Warden Cannon, Secretary Buss, Rana Wallace, Russell Hosford and Jennifer Parker to establish what, if anything, DOC did in response to letters from the Lundbeck, Inc., manufacturer of pentobarbital warning that their drug not be used for this purpose. Dr. Waisel testified to the significance of these letters, and what should be done in response to them. Surely, the testimony of the people who were responsible for considering Lundbeck’s concerns about the safety and efficacy of their product for a particular purpose was relevant to the issue of the efficacy of that product for that purpose.
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Not only must the choice of pentobarbital be considered, but also the means by which it is to be administered. Whether pentobarbital is administered properly, by personnel with the necessary training and experience with the drug, is determinative of its efficacy. Similarly, the source of the drug, and whether the Department of Corrections obtained it legally, are relevant to the drug’s effectiveness. If we don’t even know where the drug comes from, it is impossible to determine its efficacy. This is especially so where several corrections agencies throughout the country have been obtaining their lethal injection drugs from questionable suppliers, through illegal measures. Mr. Valle should have been permitted to present these witnesses to establish his claims.
The State also complains, as it did in its motion in limine below, that Mr. Valle sought to use Dr. Waisel as a “conduit for hearsay.” Supplemental Answer at 44. It further argues that the “the lower court also did not abuse its discretion in precluding Defendant from attempting to use Dr. Waisel as a conduit for hearsay.” Supplemental Answer at 44. The State asserts that their motion in limine was granted. Supplemental Answer at 10. This is simply untrue. Firstly, Mr. Valle sought only to present testimony of what information Dr. Waisel relied upon in forming his opinion and why that information was important. The court did not grant the State’s motion in limine. Rather, the court simply stated that “I think it will become clear as the testimony develops.” (T. 8/2 444). The issue did not arise
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during Dr. Waisel’s testimony, and Mr. Valle made no attempt to use Dr. Waisel as a conduit for hearsay, as the State suggests.
The State appears to confuse the issue of the motion in limine regarding Dr. Waisel’s testimony, which Mr. Valle did not raise in his initial brief, with the separate issue of the admissibility of the affidavits themselves. With regard to that issue, the State argues that the trial court properly excluded the affidavits of Greg Bluestein and Eddie Ledbetter, who had written newspaper articles about the Blankenship execution, because it had clear and convincing doubt about the accuracy of the information contained in the newspaper articles. Supplemental Answer at 47. The State avers that the court found the articles were “sensationalized” and not based solely on first-hand reports, and that “a review of the articles and affidavits supports such a finding.” Supplemental Answer at 47. This is incorrect. Mr. Bluestein and Mr. Ledbetter are both professional journalists employed by established press organizations. While the court may have its suspicions that “newspapers are motivated by the need to sensationalize things” (T. 8/2 433), or that Mr. Bluestein’s reporting is “a little bit suspect” (T. 8/2 436), there is no basis for the court to determine that the facts as stated in those newspaper articles are not true where they are the product of professional journalists, working for established and reputable press organizations, who have affirmed the accuracy of their statements through affidavit. The lower court’s
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exclusion of the affidavits was an abuse of discretion.
CONCLUSION
In light of the foregoing arguments, Mr. Valle submits that this Court should find Florida’s lethal injection procedures unconstitutional under the Eighth Amendment or, in the alternative, he should be granted a full and fair evidentiary hearing. _____________________________ SUZANNE MYERS KEFFER Chief Assistant CCRC-South Florida Bar No. 0150177 Paul Kalil Assistant CCRC-South Florida Bar No. 174114 M. Chance Meyer Staff Attorney Florida Bar No. 0056362 Capital Collateral Regional Counsel - South 101 NE Third Avenue, Suite 400 Ft. Lauderdale, FL 33301 (954) 713-1284
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic mail and United States Mail to Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Suite 650 Miami, Florida 33131 this 17th day of August, 2011. _____________________________ SUZANNE MYERS KEFFER
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief is typed in Times New Roman 14 point font, in compliance with Fla. R. App. P. 9.210(a)(2). _____________________________ SUZANNE MYERS KEFFER
Jumat, 12 Agustus 2011
Making a date with death
Making a date with deathWitnessing an execution
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| Georgia Diagnostic & Classification Prison, Jackson Ga. Thursday, June 23, 2011, 8:16 p.m. We were almost there, I thought. At 8:16 p.m., some 10 minutes after we had stopped at the open gate, the driver’s radio crackled to life. He responded with a “10-4,” and we began rolling again, this time past a basketball court and a volleyball court on our left. After we passed the courts, the driver turned left across the prison ... |
The affidavit of Eddie Ledbetter be admitted as evidence
Mr. Valle moved that the affidavit of Eddie Ledbetter be admitted as evidence for similar reasons. Mr. Ledbetter is the Assistant Editor for the Statesboro Herald in Statesboro, Georgia who also witnessed the Blankenship execution. Mr. Ledbetter reported that Mr. Blankenship jerked and twinged after the administration of the pentobarbital, that he jerked his arms twice, lifted his head from the gurney and, while looking at his right arm, he appeared to say ―Ow.‖ Mr. Blankenship continued to mumble after his head dropped back down to the gurney. Mr. Ledbetter‘s affidavit affirmed that he wrote an article for his newspaper based on his account of the execution, provided the link for the article on the newspaper‘s website and stated that articles are routinely posted online in the regular course of business of reporting the news. Mr. Ledbetter also attested to the truth and accuracy of the attached article. The court‘s refusal to admit these affidavits was error.
Dr. David Waisel, testified that he is an anesthesiologist at Boston Children‘s Hospital and medical ethicist
Dr. David Waisel, testified that he is an anesthesiologist at Boston Children‘s Hospital and medical ethicist (T. 8/2 49). Dr. Waisel performs "perioperative care," which includes anesthetizing patients for surgery. Dr. Waisel has been an anesthesiologist for 18 years, and has attended to approximately 15,000 to 20,000 patients (T. 8/2 40). In addition to his practice, Dr. Waisel is an associate professor at Harvard Medical School, lectures trainees and is in charge of the fellowship. As a medical ethicist, Dr. Waisel performs services for patients and families, as well as consulting with institutions on matters related to development of policy and quality of care (T. 8/2 43). In addition to being board certified in anesthesiology, Dr. Waisel has written approximately 30 peer-reviewed articles and numerous other contributions to publications regarding medical ethics and anesthesiology.
Dr. Waisel has consulted with capital defendants regarding lethal injection issues and testified in three states (T. 8/2 46). Dr. Waisel was contacted by Mr. Valle‘s counsel in early July, 2011. He reviewed the Florida lethal injection 9
protocols from 2007 and June 2011. In Dr. Waisel‘s opinion, the protocol‘s change from sodium thiopental to pentobarbital is significant (T. 8/2 49). As an anesthesiologist, Dr. Waisel is familiar with both pentobarbital and sodium thiopental (T. 8/2 49). The purpose of pentobarbital is to anesthetize the inmate prior to the injection of pancuronium, which paralyzes the inmate mostly for cosmetic reasons, and potassium chloride to stop the heart, which would be excruciatingly painful if the inmate were not anesthetized (T. 8/2 50). Dr. Waisel testified that the improper administration of pentobarbital could result in the inmate not being adequately anesthetized. This would result in paralysis, which would be a ―horrible‖ and ―terrifying‖ feeling and ―probably hellish‖ experience (T. 8/2 50-51). Both sodium thiopental and pentobarbital are classified as barbiturates, however, they are used in extremely different ways and are not interchangeable (T. 8/2 52). Both were developed in the late 1920's, early 1930's. By the early 1950‘s, sodium thiopental became the standard drug for intravenous injection of anesthesia in over 95% of patients. As a result, sodium thiopental was studied extensively. On the other hand, pentobarbital was not used for induction of anesthesia and is not widely studied. Dr. Waisel testified that there are only two studies, one from 1948 and one from 1951, examining pentobarbital for induction of anesthesia in relatively healthy patients. 10
Pentobarbital became a ―niche drug,‖ used in the intensive care unit for patients who had very bad seizures that could not be stopped any other way, to stop the electrical activity of the brain to prevent the brain from being injured (T. 8/2 54) Pentobarbital was also used for patients with swollen brains to decrease the electrical activity and the need of the brain for energy to help decrease damage to the brain. Pentobarbital might also be used for sedation in children receiving radiographic scans, but it has been replaced by better drugs for that use (T. 8/2 54). Besides these ―niche‖ uses, pentobarbital was used ―extraordinarily infrequently‖ in the operating room to provide brain protection when an interruption of blood flow to the brain was anticipated (T. 8/2 54). However, sodium thiopental was used ―nearly exclusively‖ for that purpose because it was a very common drug (T. 8/2 54). Moreover, when pentobarbital was used in those circumstances where patients required brain silence, an anesthetic was administered first (T. 8/2 56). Because of its extensive use, Dr. Waisel ―can't imagine there is a drug we know better in anesthesiology then sodium thiopental (T. 8/2 57). It has been tested in all sorts of patients, with all sorts of diseases, and all sorts of clinical situations, by novices and by experts. Because of this, we know its strengths and how to mitigate its weaknesses‖ (T. 8/2 59).
While ―nothing about [sodium thiopental] will surprise us,‖ (T. 8/2 59), the 11
same cannot be said for pentobarbital, which is only used in narrow circumstances (T. 8/2 60). Moreover, pentobarbital has been researched in the context of those narrow uses, but not in use for induction of anesthesia, because it was not used in that manner (T. 8/2 60). The information on pentobarbital is ―appropriately dismal‖ because it is not used for anesthesia (T. 8/2 60). Prior to June 8, 2011, the Florida lethal injection procedures called for five grams of sodium thiopental. The new lethal injection protocol calls for the use of five grams of pentobarbital. However, as Dr. Waisel explained, the dosages are not proportional. A 500 milligram dose of thiopental would anesthetize a 220 pound man, thus a dose of five grams is ten times the amount of the upper dose for induction of anesthesia (T. 8/2 61). However, with pentobarbital the upper dose for sedation, not for anesthesia, is 500 milligrams for an unspecified weight. That is also ten times the dose, but for sedation, which is significantly different than anesthesia (T. 8/2 61). In fact, the package insert for pentobarbital does not state that pentobarbital is to be used, or is approved for, the induction of anesthesia (T. 8/2 62).
Dr. Waisel explained that the package insert is ―the truth, the bible for what we know.‖ (T. 8/2 63). The Food and Drug Administration approves the package inserts for drugs, which lists the uses, effects and complications associated with its use (T. 8/2 64). According to the package insert, there is no average intravenous 12
dosage of pentobarbital that can be relied on to produce similar effects in different patients (T. 8/2 67). The commonly used initial dose for the 70 kilo adult is 100 milligrams (T. 8/2 67). "If necessary, additional small increments of the drug may be given up to a total of, from 200 to 500-milligrams for normal adults. However, there is a ―vast‖ difference between sedation and anesthesia (T. 8/2 68). It is probably best to think of sedation and anesthesia on a continuum from being wide awake to being completely anesthetized and being able to do an operation. In ―conscious sedation,‖ the patient can respond to voices, can make movements, and will respond to varying levels of pain (T. 8/2 68). As the patient gets closer to anesthesia, the amount of stimulus required to have the patient respond is increased. A greater stimulus will cause a response by the patient whereas lesser stimulus will not (T. 8/2 68). Dr. Waisel explained that trainees often will see a patient as quiet and still, assume that the patient is anesthetized, do something stimulating or painful. This results in the patient responding by grabbing whatever part of the body is being stimulated (T. 8/23 at 69). Dr. Waisel also explained that one cannot extrapolate an appropriate does of pentobarbital for anesthesia based on the upper limit dose because we do not have the data to know that (T. 8/2 70). This would only be done in the most extreme circumstances where there was no alternative (T. 8/2 70).
Pentobarbital is manufactured by a company called Lundbeck. Dr. Waisel 13
reviewed several letters from Lundbeck to officials in several states, including Florida, warning against the off-label use of pentobarbital (T. 8/2 71). As Dr. Waisel explained, such a manufacturer‘s warning is unusual. Nearly always, the FDA issues initial warnings and the drug manufacturers follow with their own statement (T. 8/2 72). Dr Waisel explained that ―I take any of these warnings very very serious, and so if the manufacturer chooses to do this in and of itself, I give it the highest regard.‖ (T. 8/2 72). If he, as an anesthesiologist, received such a warning about a drug, he would ―absolutely not use it‖ absent ―an absolute hail Mary situation‖ (T. 8/2 72). Dr. Waisel explained that the change in Florida‘s lethal injection protocol from sodium thiopental to pentobarbital was ―very significant‖ (T. 8/2 74) because: We're taking a drug that we know everything about, replacing it with a drug which we know nothing, almost nothing, about in terms of inducing anesthesia in otherwise healthy people. In addition, when we think about how errors happen, this increases the likelihood of errors and subsequent harm to the inmate -- substantial harm, dramatically. * * * The community knowledge of sodium thiopental provided a bulwark against substantial harm . . . When you have, as we've seen in other cases, a high risk procedure where there are many points where there could be errors, not having a bulwark, especially at the end exposes the inmate to extraordinary risk. (T. 8/2 74).
Dr. Waisel had the opportunity to speak to Greg Bluestein, a witness to the 14
execution of Roy Blankenship in Georgia3 (T. 8/2 75). Dr. Waisel also reviewed several affidavits of other witnesses to the Blankenship execution, including Eddie Ledbetter and Mitchell Peace, also journalists (T. 8/2 76). In addition, when consulting on the DeYoung case in Georgia, Dr. Waisel reviewed affidavits of approximately 13 employees of the Georgia Department of Corrections who witnessed the Blankenship‘s execution.
3 The State made a motion in limine ―to preclude Dr. Waisel from being used as a conduit for hearsay,‖ specifically regarding Dr. Waisel‘s conversations with Associated Press reporter Mr. Bluestein, who witnessed the execution of Roy Blankenship in Georgia on June 23, 2011, as well as the other affidavits Dr. Waisel reviewed with respect to the Blankenship execution (T. 8/2 6). Mr. Bluestein, a reporter for the Associated Press, was not available to testify due to journalist privilege and the policies of his employer. Attorneys for the Associated Press indicated that Mr. Bluestein would be available only if subpoenaed and would claim journalist‘s privilege (T. 8/2 9).
Blankenship was executed under Georgia‘s protocol, which calls for the use of pentobarbital (T. 8/2 80). Based on his review of the witnesses‘ affidavits, Dr. Waisel concluded that ―Mr. Blankenship suffered extremely during the execution.‖ (T. 8/2 78). By report, Blankenship looked to his one arm in pain and looked to the other arm in pain. He then grimaced, jerked his head up, continued breathing and mouthing words for up to three-minutes (T. 8/2 78-79). Dr. Waisel explained that this three minute span was significant in two ways. First, while some patients, while being induced under anesthesia, may make movements for the first 15 seconds or so, the movements are not focused or localized as Blankenship‘s were 15
(T. 8/2 79). Second, if pentobarbital worked as the state claimed, this would last for the first 3 seconds when the drug reaches the body, not for three minutes, which is not how the state claims pentobarbital works. On cross-examination, Dr. Waisel testified that ―phase induction‖ involves rendering a patient unconscious at the beginning of some surgical procedure, and induction of anesthesia is normally accomplished with intravenous drugs, but rarely just one (T. 8/2 82). For the duration or the of the surgical procedure, anesthesia is often maintained with a balanced anesthetic, which includes an inhaled anesthetic (T. 8/2 82). Sodium thiopental is no longer available (T. 8/2 70). Sodium thiopental is an ultra short acting barbiturate. Pentobarbital is classified as both a short acting and an intermediate acting barbiturate (T. 8/2 85). These classifications refer to the length that the drugs are effective, not to the rate at which they take effect (T. 8/2 85). Pentobarbital did not become the favored drug back before the 1950's because its effects last longer than sodium thiopental (T. 8/2 85).
Pentobarbital is used to control seizures. One of the primary objectives of seizure control using pentobarbital is to achieve burst suppression in the brain if the seizure is severe and intractable (T. 8/2 86). Burst suppression can be determined with the use of an EEG (T. 8/2 87). Dr. Waisel explained that the initial doses of pentobarbital to start are well established, because you want to start on the 16
lower end to build effect. The EEG is used as a monitor to help decide the appropriate amount of pentobarbital for this person who has a brain injury of some sort. Dr. Waisel opined that 5,000 milligrams of pentobarbital, if delivered intravenously, in the time frame of Florida‘s lethal injection protocol would most likely achieve burst suppression ―in the scenario of a patient who has brain damage, such as intractable seizures, such as a swollen brain.‖ (T. 8/2 89). However, there is no data of the affect of pentobarbital in a patient who does not have brain damage, intractable seizures, or brain swelling, so Dr. Waisel was not able to opine in that context (T. 8/2 90). While the dosages for burst suppression in people with injured brains is established, Dr. Waisel cautioned that in those situations, the patient is monitored and the dose is titrated to affect (T. 8/2 93). ―We don‘t just give a dose and walk away.‖ (T. 8/2 94). Anesthesiologists always monitor the patient closely. When they use a drug that we know less about, there is even greater vigilance (T. 8/2 97). We do not have the body of information about pentobarbital for induction of general anesthesia in healthy people (Id).
Dr. Jacqueline Martin, who testified by telephone from New York
The State also presented Dr. Jacqueline Martin, who testified by telephone from New York. Dr. Martin is a deputy chief medical examiner at the Georgia Bureau of Investigations where she has been employed since 2001 (T. 7/28 123). Dr. Martin performs autopsies and performs some administrative duties. In the course of her responsibilities as a medical examiner for the State of Georgia, Dr. Martin witnessed the execution of Roy Blankenship. She had witnessed two other executions (T. 7/28 124). 7
Dr. Martin was seated in the witness area, in the front row by the window separating the witness area from the execution chamber. She estimated she was about five feet away from the inmate (T. 7/28 125). Dr. Martin stated that she did not have a clear and unobstructed view of Mr. Blankenship, but then indicated she could see him clearly (T. 7/28 125-126). She described what she saw: When he -- when the warden left, about two to three minutes later, Mr. Blankenship looked to his left arm, he made some movement of his mouth, and then looked to his right arm, and then -- well, he kind of laid -- well, pushed his head towards the pillow and stayed put. (T. 7/28 129). Dr. Martin opined that she did not observe Mr. Blankenship to be in any pain (T. 7/28 136). Dr. Martin does not treat living patients and does not have experience in anesthesia (T. 7/28 134). She does not practice surgery or anesthesiology. Her only experience in a surgical setting witnessing somebody who's been sedated or induced anesthetically was as a medical student in 1984 or 1985 (T. 7/28 134). She does not recall how many times she might have witnessed someone being induced. Blankenship was the first execution that that she witnessed where pentobarbital was used (T. 7/28 135). The Georgia Bureau of Investigation, who employs Dr. Martin, is a law enforcement agency (T. 7/28 137). After the Blankenship execution, the Georgia state attorney's office asked Dr. Martin to produce an affidavit (T. 7/28 138).
Dr. Martin described Mr. Blankenship‘s facial expressions during the 8
execution: Mr. Blankenship, when he first looked towards his left hand, he opened and closed his mouth like he was chewing. He had no teeth -- no natural teeth, it was somewhat awkward, and then he went -- did the same thing looking to his right arm, and then he closed his mouth and stayed put. (T. 7/28 140).
John Harper, a 23-year employee of the Georgia Diagnostic Prison in Jackson, Georgia
The State presented John Harper, a 23-year employee of the Georgia Diagnostic Prison in Jackson, Georgia (T. 7/28 88-89).2 Mr. Harper has attended twenty-eight lethal injection executions in Georgia, including the execution of Roy Blankenship on June 23, 2011 (T. 7/28 89). During the Blankenship execution, Mr. Harper was in the mechanical room behind the actual execution chamber. Mr. Harper explained that there's a witness area separated from the execution chamber
2 Mr. Valle moved to strike the testimony of the State‘s witnesses Jacqueline Martin and John Harper, because their testimony was offered to rebut the testimony that would have been offered by Mr. Valle‘s witnesses, who the court had excluded upon argument by the State (8/2 at 28). 5
by a wall of windows. Behind that chamber, there's another window that leads into the mechanical room where he was situated. Between the mechanical room and the gurney is a one-way (or a two-way) mirror - you can see out but you can't see in (T. 7/28 90). Mr. Harper was approximately 86 inches from the head of the gurney (T. 7/28 90). He could see Mr. Blankenship‘s left side (T. 7/28 91). About 5 seconds after the injection of the first syringe, Mr. Harper saw Mr. Blankenship look at his left arm, then his right. He then made a noise that Mr. Harper described as a ―grunt.‖ Mr. Harper did not see Mr. Blankenship move after the consciousness check (T. 7/28 91-92).
Mr. Harper explained that he was not as close to the inmate as the witnesses in the first row. He could hear, but could not tell what was being said (T. 7/28 96). Mr. Blankenship's execution was the first Mr. Harper had witnessed involving pentobarbital (T. 7/28 98). Mr. Harper has never been trained in, and has no knowledge about pentobarbital (T. 7/28 98). He could not, or would not, estimate the size of the mechanical room in which he was situated (T. 7/28 99). Mr. Harper‘s duties during the execution involved communicating on the telephone with two command posts, letting them know what was happening (T. 7/28 100). While his view of the inmate is ―mostly‖ unobstructed (T. 7/28 100), people would walk in front of him. There were approximately eight people in the mechanical 6
room, including the person actually pushing the syringes (T. 7/28 100). Mr. Harper had indicated in an affidavit that there were two stopwatches in the mechanical room, however, he testified that he did not observe those stopwatches and relied on the clock in the execution chamber for his time line (T. 7/28 101-102). While present at the execution of Mr. Blankenship, Mr. Harper was on the telephone, there were people in front of him at times, and he saw the person pushing the syringes and he was taking notes (T. 7/28 102-103). Mr. Blankenship moved to look at his left arm within 5 seconds of the first syringe being pushed (T. 7/28 103). While he could not estimate the length of the IV tubing, Mr. Harper did not believe that this was enough time for the drug to actually reach the inmate (T. 7/28 105). Approximately five seconds after looking at his arm, Mr. Blankenship laid his head back (T. 7/28 106). Mr. Harper does not know what chemical is in each of the syringes (T. 7/28 107).
2 Mr. Valle moved to strike the testimony of the State‘s witnesses Jacqueline Martin and John Harper, because their testimony was offered to rebut the testimony that would have been offered by Mr. Valle‘s witnesses, who the court had excluded upon argument by the State (8/2 at 28). 5
by a wall of windows. Behind that chamber, there's another window that leads into the mechanical room where he was situated. Between the mechanical room and the gurney is a one-way (or a two-way) mirror - you can see out but you can't see in (T. 7/28 90). Mr. Harper was approximately 86 inches from the head of the gurney (T. 7/28 90). He could see Mr. Blankenship‘s left side (T. 7/28 91). About 5 seconds after the injection of the first syringe, Mr. Harper saw Mr. Blankenship look at his left arm, then his right. He then made a noise that Mr. Harper described as a ―grunt.‖ Mr. Harper did not see Mr. Blankenship move after the consciousness check (T. 7/28 91-92).
Mr. Harper explained that he was not as close to the inmate as the witnesses in the first row. He could hear, but could not tell what was being said (T. 7/28 96). Mr. Blankenship's execution was the first Mr. Harper had witnessed involving pentobarbital (T. 7/28 98). Mr. Harper has never been trained in, and has no knowledge about pentobarbital (T. 7/28 98). He could not, or would not, estimate the size of the mechanical room in which he was situated (T. 7/28 99). Mr. Harper‘s duties during the execution involved communicating on the telephone with two command posts, letting them know what was happening (T. 7/28 100). While his view of the inmate is ―mostly‖ unobstructed (T. 7/28 100), people would walk in front of him. There were approximately eight people in the mechanical 6
room, including the person actually pushing the syringes (T. 7/28 100). Mr. Harper had indicated in an affidavit that there were two stopwatches in the mechanical room, however, he testified that he did not observe those stopwatches and relied on the clock in the execution chamber for his time line (T. 7/28 101-102). While present at the execution of Mr. Blankenship, Mr. Harper was on the telephone, there were people in front of him at times, and he saw the person pushing the syringes and he was taking notes (T. 7/28 102-103). Mr. Blankenship moved to look at his left arm within 5 seconds of the first syringe being pushed (T. 7/28 103). While he could not estimate the length of the IV tubing, Mr. Harper did not believe that this was enough time for the drug to actually reach the inmate (T. 7/28 105). Approximately five seconds after looking at his arm, Mr. Blankenship laid his head back (T. 7/28 106). Mr. Harper does not know what chemical is in each of the syringes (T. 7/28 107).
Matt Schulz, an attorney with the capital habeas unit of Federal Defender's Office for the Middle District of Alabama
Mr. Valle presented Matt Schulz, an attorney with the capital habeas unit of Federal Defender's Office for the Middle District of Alabama (T. 7/28 29) who represented Eddie Powell, a death-sentenced Alabama inmate. Mr. Schulz witnessed the execution of Mr. Powell on June 16, 2011, with Federal Defender 2
Christine Freeman. Mr. Schulz felt that Powell was handling his execution about as well as he could possibly expect someone to handle it, so he was not in any sort of distress other than just obviously the general anxiety about what was coming (T. 7/28 36).
Mr. Schulz had never been to the execution chamber before and did not know what to expect (T. 7/28 38). Also present in the execution chamber were the guard who brought them into the room, Ms. Freeman and three members of the press. There were additional witnesses who Mr. Schulz could not see (T. 7/28 40). Mr. Schulz explained that the witness room was separated from the chamber by a window, which was covered by a curtain when he arrived (T. 7/28 40). He sat right in front of the window. Mr. Powell was in the middle of the execution chamber, already on the gurney. He was strapped down, and covered by a number of white sheets tightly wrapped around him. Mr. Schulz could not see Mr. Powell‘s feet below the sheets (T. 7/28 40-41). He could see most of Mr. Powell‘s body, approximately seven or eight feet away. Mr. Schulz faced the left side of Mr. Powell‘s body. He could see the entire left side of Mr. Powell‘s face, his arms which were strapped to extensions on the gurney (T. 7/28 41-42). Mr. Schulz observed two guards and a chaplain in the chamber. The warden then entered the room, read the death warrant, and asked if Mr. Powell had any last words. The warden placed the microphone close to Mr. Powell's face and Mr. Powell 3
apologized for the pain that he had caused the victim‘s family and his own (T. 7/28 43). Mr. Powell did not appear to be in any distress at that time (T. 7/28 43). After Mr. Powell‘s last statement, the warden stated the execution would now be carried out. He walked behind Mr. Powell and Mr. Schulz was not able to see the warden after that point. There was a wall behind Mr. Powell and the IV lines ran into and/or around the wall, so Mr. Schulz was not able to see the warden or know when they were injecting the lethal drugs (T. 7/28 44). Mr. Schulz described what he saw: After approximately one minute, Mr. Powell all of the sudden jerked his head up and kind of his upper body also jerked up rather abruptly. He looked to be pressing -- it looked as though his upper body was pressing against the restraints, and he had a real look of confusion on his face. He looked around, and then looked down at the chaplain, and he particularly had a look of confusion when he looked down at the chaplain, and then he began -- about the only way I can describe it is it look as though he was clenching his jaw and flexing the muscles in his face and in his neck quite strenuously. It's -- that looked as though -- I don't know whether it was his arteries actually throbbing or if it was just because of the muscles flexing, but it looked as though his artery was pumping and blood was sort of pumping into his face at that point, and that lasted for about a minute in and of itself, and then he -- at that point, his eyes started to kind of glaze over and rolled into the back of his head, and then his head went back down in what appeared to be involuntary at that point. * * * He appeared to be restrained clear throughout his lower and upper body…I was really only looking at his upper body, so it looked like -- kind of like his shoulders were pressing up against the restraints. * * * 4
After a few minutes, a guard approached Mr. Powell and then sort of bent down a little towards him and yelled very loudly, "Eddie, Eddie, Eddie," and there was no response, and then the guard ran his -- it looked like he ran his finger kind of lightly over Mr. Powell's left eyelash, and there was, again, no response. (T. 7/28 46-49). Mr. Schulz noted that Mr. Powell‘s eyes were open, but, by the end of the procedure which lasted 20 to 25 minutes, they appeared to be fully closed (T. 7/28 49). Mr. Schulz explained that, to his knowledge, Alabama uses a three-drug cocktail in their lethal injection procedures and that they recently announced they were switching from sodium thiopental to pentobarbital (T. 7/28 51). Mr. Schulz was surprised that the process would have taken so long (T. 7/28 58). He could see from the clock in the execution chamber that it took 20 to 25 minutes (T. 7/28 59).
The supplemental initial brief of Manuel Valle
http://www.floridasupport.us/lethal/Valle/EB3A4d01.txt
http://www.floridasupport.us/lethal/Valle/Filed_08-12-2011_Appellant_Supplemental_Initial_Brief.pdf
http://www.floridasupport.us/lethal/Valle/Filed_08-12-2011_Appellant_Supplemental_Initial_Brief.pdf
IN THE SUPREME COURT OF FLORIDA
NO. SC11-1387
______________________________________________________
MANUEL VALLE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
______________________________________________________
DEATH WARRANT SIGNED
______________________________________________________
SUPPLEMENTAL INITIAL BRIEF OF APPELLANT
______________________________________________________
NEAL A. DUPREE
Capital Collateral Regional
Counsel—South
SUZANNE KEFFER
Chief Assistant CCRC-South
OFFICE OF THE CAPITAL
COLLATERAL REGIONAL
COUNSEL—SOUTH
101 N.E. 3rd Avenue, Suite 400
Ft. Lauderdale, Florida 33301
(954) 713-1284
COUNSEL FOR MR. VALLE
Spanish Government must act to stop execution of Manuel Valle, denied clemency by Florida
12 August 2011
Spanish Government must act to stop execution of Manuel Valle, denied clemency by Florida
Spain is being urged to intervene in the case of a possible Spanish national who is facing the death penalty in Florida in less than a month, having been denied due process.Leer este articulo en Espanol
Manuel Valle, who is expected to be killed by lethal injection on 2 September, is a Cuban national but comes from a Spanish family. Due to the chaotic nature of record-keeping in Cuba, there is too little time to make an application for Spanish nationality before his execution date.
In what appears to be a serious lapse in due process, Mr Valle has been denied clemency proceedings by the state of Florida, despite having been held on death row for 33 years.
Reprieve, a charity which assists people facing the death penalty abroad, is appealing to the King of Spain and the Spanish Minister of Foreign Affairs to intervene in the case of Manuel Valle before it is too late, by submitting briefs in support of his case to the US courts.
Spain has previously had a strong record on opposing the death penalty, with Prime Minister Jose Luis Zapatero stating that “Spain and the Spaniards are fully committed to this fight against the death penalty” and claiming that he feels “personally involved in this struggle.”
Reprieve investigator Katherine Bekesi said:
“The Spanish Government must take steps to oppose this execution. We believe Manuel Valle could be recognised as a Spanish national, but in just a few weeks it will be too late for him.
“He has been on death row an inconceivable 33 years, against all international human rights norms – an enormous amount of time to be daily awaiting ones own death.
“Mr Valle has been denied clemency proceedings, in violation of Florida’s own Constitution. If the Spanish Government does not intervene as soon as possible, they risk damaging their country’s otherwise strong credentials as staunch opponents of the death penalty.”
ENDS
Notes to editors
Manuel Valle is a Cuban citizen but has strong family ties to Spain, primarily through his father’s side. However, due to difficulties accessing Cuban records, it has not been possible either to determine whether Mr Valle is eligible for Spanish nationality through his family background, and time is now running out. Additionally, the lack of proper Cuban consular representation in the US means that he has effectively been denied the consular support to which he should be entitled as a non-US citizen. Further information on Manuel Valle can be found here: http://www.reprieve.org.uk/cases/manuelvalle/?utm_source=Press+mailing+list&utm_campaign=fd4969c6de-2011_08_02_valle_stay&utm_medium=email
Reprieve has written to the King of Spain, the Spanish Minister of Foreign Affairs and the Spanish Minister of Justice, asking them to submit an ‘amicus curiae’ (‘friend of the court’) briefing in support of Manuel Valle’s case. So far, they have yet to do so.
Mr Valle’s execution was stayed earlier this month to allow consideration of whether the method of execution may constitute ‘cruel and unusual punishment’. More information on this issue can be found here: http://www.reprieve.org.uk/press/2011_08_08_Florida_risks_botched_executions/
Mr Valle’s execution is currently expected to take place on 2 September this year.
In February 2010, Jose Luis Zapatero, then holding the European Union presidency, participated in the 4th World Congress against death penalty. On this occasion he reitered Spain’s dedication to universal abolition:
“At the present time, more than two thirds of UN member countries have abolished the death penalty in law […] Spain and the Spaniards are fully committed to this fight against the death penalty. Today is a new phase in that fight with the creation of a commission dedicated to its abolition. The commission will include people of high moral standing and from all regions of the world”. http://www.abolition.fr/ecpm/french/news.php?new=1270
In an interview preceding the congress, Mr Zapatero explained why abolition was a key objective of his foreign policy and of the Spanish presidency of the EU.
“As requested by the United Nations’ human rights bodies, we adopted a National plan for human rights as part of our foreign policy in December 2008. We included the fight for the abolition of the death penalty in that plan. Today, we see that a growing number of countries are in favour of abolition. We must support and encourage them. The Spanish presidency of the EU gives us visibility and an opportunity that can be leveraged for efficiency in this struggle. I feel personally involved in this struggle.” http://www.academicsforabolition.net/repositorio/ficheros/81_46.pdf
The Ugly Business of Lethal Injection
Published on Friday, August 12, 2011 by OtherWords
The pretense of lethal injection as a peaceful and painless way to execute prisoners is unraveling, and this may change the face of the death penalty in the United States.The Ugly Business of Lethal Injection
Attorneys trying to prevent the cruelty of a botched execution are challenging states' efforts to conduct experiments on their clients with new execution drugs.
In September 2009, the state of Ohio tried to execute Romell Broom. The execution team, with Broom's cooperation and even assistance, poked and prodded him with needles for more than two hours but was unable to find a usable vein. It wasn't the first bungled lethal injection in Ohio, but it was the first to end with the inmate still alive.
"Eager prosecutors and prison officials, with the support of compliant courts, have managed to keep death chambers active." (photo: World Coalition Against the Death Penalty)Since 1977, states have adopted the Orwellian practice of staging executions to look like benign medical procedures. This charade was designed to obscure reality. But now botched executions, such as Broom's, and increasingly pointed objections from the pharmaceutical industry, have focused attention on the legally and ethically dubious ways lethal injection actually works.
In March 2010 Hospira Inc., the sole Food and Drug Administration-approved manufacturer of sodium thiopental, formally asked Ohio prison officials and other states not to use the drug for executions. This plea fell on deaf ears, so in January 2011 Hospira ceased its production.
A mad scramble for a new source ensued. But in a globalized pharmaceutical marketplace, the search for sodium thiopental collided with the rest of the world's growing opposition to the death penalty. Novartis, a Swiss-based drug company, quickly announced that it would prevent the export of its generic version of sodium thiopental to the United States.
Several states acquired it from Dream Pharma, a small distributor operating out of a driving school in London, but much of it was confiscated by the U.S. Drug Enforcement Agency due to its questionable origins. Nebraska purchased its new sodium thiopental from Kayem, a supplier in India. Like Hospira and Novartis, Kayem tried to disassociate itself from lethal injection, stating that it would no longer sell the drug for use in executions, which it said aren't consistent with the "ethos of Hinduism." In the end Nebraska destroyed its newly purchased supply.
Without reliable sources of sodium thiopental, states have turned to a new anesthetic, pentobarbital, manufactured by Denmark-based Lundbeck. On June 23 of this year, Roy Blankenship was put to death in Georgia with Lundbeck's drug, even though the company had declared it was "not safe" and asked the Peach State not to use it. Pentobarbital, like sodium thiopental, is an anesthetic, and its purpose in executions is to render the prisoner unconscious so that the killing drugs that follow do not cause excruciating pain. Instead, Blankenship reacted strongly to this anesthetic, jerking his head, blinking rapidly, lunging and mouthing inaudible words.
Rather than halting executions temporarily to conduct a full investigation of what happened to Blankenship, the state responded to this debacle by agreeing to another death row inmate's demand that the next execution be videotaped. The inmate wanted to prove that this drug could cause pain and suffering.
This response illustrates the relentless enthusiasm with which Georgia and some other states pursue executions. Eager prosecutors and prison officials, with the support of compliant courts, have managed to keep death chambers active. There have been more than 90 executions since the bungled lethal injection attempt of Romell Broom.
But this may soon change. Attorneys trying to prevent the cruelty of a botched execution will continue to challenge states' efforts to conduct experiments on their clients with new execution drugs. In fact, states with small death rows and few executions, seeing costs but no benefits to being associated with such a sordid spectacle, will likely opt out by abolishing capital punishment outright, following the examples set by New Jersey, New Mexico, and Illinois.
Recent developments have permanently destroyed the myth of the humane execution. Lethal injection has been exposed as an ugly business, designed to divert attention from the even uglier reality that states are carrying out deliberate pre-meditated killings.
And in the end, that's what's wrong with capital punishment.
Selasa, 09 Agustus 2011
New federal order
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
http://www.floridasupport.us/lethal/Valle/CF892d01.pdf
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
http://www.floridasupport.us/lethal/Valle/CF892d01.pdf
Federal order
http://www.floridasupport.us/lethal/Valle/EE6A7d01.pdf
Case 3:11-cv-00700-MMH-TEM Document 25 Filed 08/09/11 Page 1 of 1 PageID 540
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MANUEL VALLE,
Plaintiff,
v. Case No. 3:11-cv-700-J-34TEM
STEVEN SINGER,
etc.; et al.,
Defendants.
ORDER
Defendants, on or before Friday, August 19, 2011, shall
respond to Valle's Motion for Immediate Scheduling Conference Under
Rule 16 of the Federal Rules of Civil Procedure (Doc. #6) and
Motion to Permit Discovery Prior to Rule 26(f) Conference and for
Expedited Discovery (Doc. #7).
DONE AND ORDERED at Jacksonville, Florida, this 9th day of
August, 2011.
sc 8/9
c:
Counsel of Record
Florida risks return to botched executions as expert warns on 'burning pain'
|
Florida risks return to botched executions as expert warns on 'burning pain'
The rejection by a Florida judge of an appeal against the use of a new and untested execution drug could see a return to botched executions in the state, according to evidence from experts in the US.
Florida is seeking to carry out its first execution using pentobarbital, a new drug which has recently been involved in several badly botched lethal injections across the US. Earlier this year, Georgia’s first lethal injection using pentobarbital went so badly wrong that the state took the rare step of videotaping a subsequent execution to provide evidence on whether the process broke restrictions on ‘cruel and unusual punishment’.
Florida's adoption of this new drug could provide a grim reminder of the execution of Angel Diaz, who took over half an hour to die following a botched lethal injection in 2006, leading then-Governor Jeb Bush to declare a moratorium.
Last week, the Florida circuit court heard from a Harvard anaesthesiologist who stated that, for the purposes of anaesthesia, “almost nothing” was known about pentobarbital, and that should the drug fail to work, prisoners would suffer “incredibly burning pain” from the subsequent injection of a heart-stopping drug. Dr David Waisel also testified that Roy Willard Blankenship, the first person executed in Georgia using pentobarbital, “suffered an extremely painful execution.”
Despite this, Judge Jacqueline Hogan Scola ruled that the onus was on the defense to prove a substantial risk of serious harm, and they had not done so. In making her order, Judge Scola sided with the prosecution, one of whose witnesses – a Georgia corrections official – had argued that Mr Blankenship’s pentobarbital execution was “relatively non-eventful,” despite eyewitness accounts describing “jerking”, “thrashing”, and the prisoner’s eyes remaining open until death.
The case will now proceed to the Florida Supreme Court, with lawyers for Cuban national Manuel Valle, who faces execution using pentobarbital in early September, expected to file later this week.
Reprieve investigator Katherine Bekesi said:
“It is disgraceful that it is being left up to the defense to prove that this drug is likely to cause extreme suffering. It is the state’s responsibility to prove that it will not cause pain, yet they have not even managed this.
“There is a real risk that the execution of Manuel Valle could cement Florida’s unwelcome reputation for botched executions.
“Should this new, untested drug be used, Mr Valle may well suffer severe pain, in breach of both state and federal laws against cruel and unusual punishment.
“It has to be hoped that the Florida Supreme Court will give this issue more careful consideration than it received from the circuit court before there is another unnecessary and tortuous killing by the State of Florida.”
ENDS
Notes to editors
For more information please contact Donald Campbell or Katherine O'Shea at Reprieve’s Press Office: donald.campbell@reprieve.org.uk / +44 (0) 20 7427 1082 / (0) 7791 755 415 / katherine.oshea@reprieve.org.uk / +44 (0) 20 7427 1099 / (0) 7931 592 674.
Manuel Valle is a Cuban national with Spanish links, who has now been on death row for 33 years. He has been denied proper clemency proceedings, and (similarly to the recent case of Humberto Leal in Texas) did not receive the consular assistance to which he was entitled. His execution has been stayed until September 1st to allow a full hearing on the matter to take place.
An eyewitness from the Associated Press has described the “thrashing, jerking death of Roy Willard Blankenship” using pentobarbital, during which “his eyes never closed”. The full text of Dr David Waisel’s affidavit on Roy Blankenship’s inadequate anaesthesia can be found on Reprieve's website. Despite these accounts of a “clearly botched” execution, “John Harper, an employee of the Georgia Department of Corrections, described the June 23 execution in that state of Roy Blankenship […] as relatively non-eventful.” – see ‘Lethal injection drug hearing to continue next week’, Miami Herald, 28 July 2011
Reprieve
PO Box 52742
London EC4P 4WS
Tel: 020 7353 4640
Fax: 020 7353 4641
Website: www.reprieve.org.uk
Reprieve is a charitable company limited by guarantee; Registered Charity No. 1114900 Registered Company No. 5777831 (England) Registered Office 2-6 Cannon Street London EC4M 6YH; Chair: Ken Macdonald QC; Patrons: Alan Bennett, Julie Christie, Martha Lane Fox, Gordon Roddick, Richard Rogers, Ruth Rogers, Jon Snow, Marina Warner, Vivienne Westwood
The rejection by a Florida judge of an appeal against the use of a new and untested execution drug could see a return to botched executions in the state, according to evidence from experts in the US.
Florida is seeking to carry out its first execution using pentobarbital, a new drug which has recently been involved in several badly botched lethal injections across the US. Earlier this year, Georgia’s first lethal injection using pentobarbital went so badly wrong that the state took the rare step of videotaping a subsequent execution to provide evidence on whether the process broke restrictions on ‘cruel and unusual punishment’.
Florida's adoption of this new drug could provide a grim reminder of the execution of Angel Diaz, who took over half an hour to die following a botched lethal injection in 2006, leading then-Governor Jeb Bush to declare a moratorium.
Last week, the Florida circuit court heard from a Harvard anaesthesiologist who stated that, for the purposes of anaesthesia, “almost nothing” was known about pentobarbital, and that should the drug fail to work, prisoners would suffer “incredibly burning pain” from the subsequent injection of a heart-stopping drug. Dr David Waisel also testified that Roy Willard Blankenship, the first person executed in Georgia using pentobarbital, “suffered an extremely painful execution.”
Despite this, Judge Jacqueline Hogan Scola ruled that the onus was on the defense to prove a substantial risk of serious harm, and they had not done so. In making her order, Judge Scola sided with the prosecution, one of whose witnesses – a Georgia corrections official – had argued that Mr Blankenship’s pentobarbital execution was “relatively non-eventful,” despite eyewitness accounts describing “jerking”, “thrashing”, and the prisoner’s eyes remaining open until death.
The case will now proceed to the Florida Supreme Court, with lawyers for Cuban national Manuel Valle, who faces execution using pentobarbital in early September, expected to file later this week.
Reprieve investigator Katherine Bekesi said:
“It is disgraceful that it is being left up to the defense to prove that this drug is likely to cause extreme suffering. It is the state’s responsibility to prove that it will not cause pain, yet they have not even managed this.
“There is a real risk that the execution of Manuel Valle could cement Florida’s unwelcome reputation for botched executions.
“Should this new, untested drug be used, Mr Valle may well suffer severe pain, in breach of both state and federal laws against cruel and unusual punishment.
“It has to be hoped that the Florida Supreme Court will give this issue more careful consideration than it received from the circuit court before there is another unnecessary and tortuous killing by the State of Florida.”
ENDS
Notes to editors
For more information please contact Donald Campbell or Katherine O'Shea at Reprieve’s Press Office: donald.campbell@reprieve.org.uk / +44 (0) 20 7427 1082 / (0) 7791 755 415 / katherine.oshea@reprieve.org.uk / +44 (0) 20 7427 1099 / (0) 7931 592 674.
Manuel Valle is a Cuban national with Spanish links, who has now been on death row for 33 years. He has been denied proper clemency proceedings, and (similarly to the recent case of Humberto Leal in Texas) did not receive the consular assistance to which he was entitled. His execution has been stayed until September 1st to allow a full hearing on the matter to take place.
An eyewitness from the Associated Press has described the “thrashing, jerking death of Roy Willard Blankenship” using pentobarbital, during which “his eyes never closed”. The full text of Dr David Waisel’s affidavit on Roy Blankenship’s inadequate anaesthesia can be found on Reprieve's website. Despite these accounts of a “clearly botched” execution, “John Harper, an employee of the Georgia Department of Corrections, described the June 23 execution in that state of Roy Blankenship […] as relatively non-eventful.” – see ‘Lethal injection drug hearing to continue next week’, Miami Herald, 28 July 2011
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Senin, 08 Agustus 2011
My recent letter about your state's use of Nembutal® (pentobarbital sodium injection, USP) for the purpose of lethal injection in your state.
June 8, 2011
The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001
Dear Mr. Scott,
I am writing to follow up on my recent letter about your state's use of Nembutal® (pentobarbital sodium injection, USP) for the purpose of lethal injection in your state.
The use of pentobarbital outside the approved labeling has not been established. As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions.
We ask that you stop using pentobarbital in the execution of prisoners in your state because it contradicts everything we are in business to do — provide therapies that improve people's lives.
Thank you for your serious consideration of this matter.
Sincerely,
Staffan Schüberg, President, Lundbeck, Inc.
The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001
Dear Mr. Scott,
I am writing to follow up on my recent letter about your state's use of Nembutal® (pentobarbital sodium injection, USP) for the purpose of lethal injection in your state.
The use of pentobarbital outside the approved labeling has not been established. As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions.
We ask that you stop using pentobarbital in the execution of prisoners in your state because it contradicts everything we are in business to do — provide therapies that improve people's lives.
Thank you for your serious consideration of this matter.
Sincerely,
Staffan Schüberg, President, Lundbeck, Inc.
Here are the letters from Schüberg to Scott:
Here are the letters from Schüberg to Scott:
May 16, 2011
The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001
Dear Governor Scott,
Lunbeck understands that the state of Florida has decided to use our product Nembutal® (pentobarbital sodium injection, USP) for the purpose of capital punishment. We are adamantly opposed to the use of Nembutal to execute prisoners because it contradicts everything we are in business to do — provide therapies that improve people's lives.
Given our strong opposition to this misuse of our product, we previously sent a letter to the Florida Department of Corrections urging it to refrain from using Nembutal for the purpose of capital punishment. The Florida Department of Corrections has not responded to our letter and we therefore request that you take immediate action to stop the use of Nembutal as a means to end lives.
After exploring several potential means of restricting the distribution of Nembutal, we've learned that we simply cannot control how licensed healthcare professionals use this or any pharmaceutical product in the United States. The only potentially effective action we can take is to appeal to you and urge that Florida refrain from using our product for a purpose that severely contradicts Lundbeck's mission to provide therapies that help improve people's lives.
Thank you for your serious consideration of this matter.
Sincerely,
Staffan Schüberg, President, Lundbeck, Inc.
May 16, 2011
The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001
Dear Governor Scott,
Lunbeck understands that the state of Florida has decided to use our product Nembutal® (pentobarbital sodium injection, USP) for the purpose of capital punishment. We are adamantly opposed to the use of Nembutal to execute prisoners because it contradicts everything we are in business to do — provide therapies that improve people's lives.
Given our strong opposition to this misuse of our product, we previously sent a letter to the Florida Department of Corrections urging it to refrain from using Nembutal for the purpose of capital punishment. The Florida Department of Corrections has not responded to our letter and we therefore request that you take immediate action to stop the use of Nembutal as a means to end lives.
After exploring several potential means of restricting the distribution of Nembutal, we've learned that we simply cannot control how licensed healthcare professionals use this or any pharmaceutical product in the United States. The only potentially effective action we can take is to appeal to you and urge that Florida refrain from using our product for a purpose that severely contradicts Lundbeck's mission to provide therapies that help improve people's lives.
Thank you for your serious consideration of this matter.
Sincerely,
Staffan Schüberg, President, Lundbeck, Inc.
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